Exhibit 4.13
THE FOLLOWING EXHIBIT 4.13 IS THE FORM OF GUARANTEE TO BE USED BY EACH OGE
ENERGY CORP. TRUST
GUARANTEE AGREEMENT
OGE ENERGY CAPITAL TRUST
DATED AS OF ___________ __, 1999
TABLE OF CONTENTS
CROSS REFERENCE TABLE*
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
PAGE
310(a).............................................................4.1(a)
310(b)........................................................2.8; 4.1(c)
310(c).......................................................Inapplicable
311(a) ............................................................2.2(b)
311(b).............................................................2.2(b)
311(c).......................................................Inapplicable
312(a) .......................................................2.2(a); 2.9
312(b)....................................................... 2.2(b); 2.9
312(c)............................................................... 2.9
313(a) ...............................................................2.3
313(b) ...............................................................2.3
313(c)................................................................2.3
313(d) ..............................................................2.3
314(a) ...............................................................2.4
314(b)...................................................... Inapplicable
314(c) ...............................................................2.5
314(d) ......................................................Inapplicable
314(e) ...............................................................2.5
314(f) ......................................................Inapplicable
315(a) ....................................................3.1(d); 3.2(a)
315(b) ............................................................2.7(a)
315(c) ............................................................3.1(c)
315(d) ............................................................3.1(d)
316(a) .......................................................2.6; 5.4(a)
316(b) ...............................................................5.3
316(c) ......................................................Inapplicable
317(a) ..............................................................2.10
317(b) ......................................................Inapplicable
318(a) ...........................................................2.1(b)
* The Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms
or provisions.
TABLE OF CONTENTS
PAGE
ARTICLE I. INTERPRETATION AND DEFINITIONS.............................................................1
Section 1.1. INTERPRETATIONS AND DEFINITIONS.......................................................1
ARTICLE II. TRUST INDENTURE ACT........................................................................5
Section 2.1. TRUST INDENTURE ACT; APPLICATION......................................................5
Section 2.2. LISTS OF HOLDERS OF SECURITIES........................................................5
Section 2.3. REPORTS BY GUARANTEE TRUSTEE..........................................................5
Section 2.4. PERIODIC REPORTS TO GUARANTEE TRUSTEE.................................................5
Section 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT......................................6
Section 2.6. GUARANTEE EVENT OF DEFAULT; WAIVER....................................................6
Section 2.7. GUARANTEE EVENT OF DEFAULT; NOTICE....................................................6
Section 2.8. CONFLICTING INTERESTS.................................................................6
Section 2.9. DISCLOSURE OF INFORMATION.............................................................6
Section 2.10. GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM............................................6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE.............................................7
Section 3.1. POWERS AND DUTIES OF GUARANTEE TRUSTEE................................................7
Section 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE...................................................8
Section 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE................................10
ARTICLE IV. GUARANTEE TRUSTEE.........................................................................10
Section 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.......................................................10
Section 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE............................11
ARTICLE V. GUARANTEE.................................................................................11
Section 5.1. GUARANTEE............................................................................11
Section 5.2. WAIVER OF NOTICE AND DEMAND..........................................................12
Section 5.3. OBLIGATIONS NOT AFFECTED.............................................................12
Section 5.4. RIGHTS OF HOLDERS....................................................................13
Section 5.5. GUARANTEE OF PAYMENT.................................................................13
Section 5.6. SUBROGATION..........................................................................14
Section 5.7. INDEPENDENT OBLIGATIONS..............................................................14
ARTICLE VI. LIMITATION OF TRANSACTIONS; SUBORDINATION.................................................14
Section 6.1. LIMITATION OF TRANSACTION............................................................14
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.2. RANKING..............................................................................14
ARTICLE VII. TERMINATION...............................................................................15
Section 7.1. TERMINATION..........................................................................15
ARTICLE VIII. INDEMNIFICATION...........................................................................15
Section 8.1. EXCULPATION..........................................................................15
Section 8.2. INDEMNIFICATION......................................................................15
ARTICLE IX. MISCELLANEOUS.............................................................................16
Section 9.1. SUCCESSORS AND ASSIGNS...............................................................16
Section 9.2. AMENDMENTS...........................................................................16
Section 9.3. NOTICES..............................................................................16
Section 9.4. BENEFIT..............................................................................17
Section 9.5. GOVERNING LAW........................................................................17
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _________ __, ____,
is executed and delivered by OGE Energy Corp., an Oklahoma corporation (the
"Guarantor"), and Wilmington Trust Company, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Securities (as defined herein) of OGE Energy Capital Trust __, a Delaware
statutory business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the Declaration (as defined herein), the Trust is
issuing on the date hereof $__________ aggregate liquidation amount of
preferred securities, having a liquidation amount of $25 per security and
designated the ___% Preferred Securities of the Trust (the "Preferred
Securities") and $__________ aggregate liquidation amount of common
securities, having a liquidation amount of $25 per security and designated
the ___% Common Securities of the Trust (the "Common Securities" and,
together with the Preferred Securities, the "Securities");
WHEREAS, as incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay to the Holders of the Securities the
Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein; and that if a Trust Enforcement
Event (as defined herein) has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments under this
Guarantee are subordinated to the rights of Holders of Preferred Securities
to receive Guarantee Payments under this Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit
of the Holders.
ARTICLE I.
INTERPRETATION AND DEFINITIONS
Section 1.1. INTERPRETATIONS AND DEFINITIONS. In this Guarantee, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections and Recitals are
to Articles, Sections and Recitals of this Guarantee, unless otherwise
specified;
(e) unless otherwise defined in this Guarantee, a term defined in the Trust
Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa and a
reference to any masculine form of a term shall include the feminine form of a
term, as applicable; and
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" has the meaning specified in the Declaration.
"Common Securities" has the meaning specified in the Recitals hereto.
"Corporate Trust Office" means the principal office of the Guarantee
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Guarantee is located
at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000.
"Covered Person" means a Holder or beneficial owner of Securities.
"Debentures" means the series of subordinated deferrable interest
debentures to be issued by the Guarantor designated the ____% Junior
Subordinated Debentures due _______ held by the Property Trustee (as defined in
the Declaration) of the Trust.
"Declaration" means the Amended and Restated Declaration of Trust, dated as
of _______ ___, 1999, as amended, modified or supplemented from time to time,
among the trustees of the Trust named therein, the Guarantor, as sponsor, and
the Holders, from time to time, of undivided beneficial ownership interests in
the assets of the Trust.
"Global Security" means a fully registered, global Preferred Security.
"Guarantee Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Securities, to the extent not paid by or on
behalf of the Trust: (i) any accumulated and unpaid Distributions (as defined in
the Declaration) that are required to be paid on such Securities to the extent
the Trust has sufficient funds available therefor at the time, (ii) the
redemption price, including all accumulated and unpaid Distributions to the date
of redemption, with respect to any Securities called for redemption by the
Trust, to the extent the Trust shall have sufficient funds available therefor at
the time or (iii) upon a voluntary or
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involuntary dissolution, winding-up or termination of the Trust (other than
in connection with the distribution of Debentures to the Holders in exchange
for Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid
Distributions on the Securities to the date of payment, to the extent the
Trust has sufficient funds available therefor and (b) the amount of assets of
the Trust remaining available for distribution to Holders in liquidation of
the Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder of Securities, as registered on the books and
records of the Trust; provided, however, that, in determining whether the
Holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor or any other obligor on the
Preferred Securities; and provided further, that in determining whether the
Holders of the requisite liquidation amount of Preferred Securities have
voted on any matter provided for in this Guarantee, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Certificates
(as defined in the Declaration), the term "Holders" shall mean the holder of
the Global Certificate acting at the direction of the Beneficial Owners (as
defined in the Declaration).
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Indenture, dated as of _________________, 1999,
between the Guarantor (the "Company") and Bank of Oklahoma, National
Association, as trustee, as amended and supplemented by the First Supplemental
Indenture dated as of ____________, 1999, and by any other indenture
supplemental thereto pursuant to which the Debentures are to be issued to the
Property Trustee (as defined in the Declaration) of the Trust.
"Majority in Liquidation Amount" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class. In determining whether the
Holders of the requisite amount of Securities have voted, Securities which are
owned by the Guarantor or any Affiliate of the Guarantor or any other obligor on
the Securities shall be disregarded for the purpose of any such determination.
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"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers (as defined in the
Declaration) of such Person. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in this Guarantee
shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer on behalf of such Person to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such officer acting
on behalf of such Person, such condition or covenant has been complied
with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning specified in the Recitals hereto.
"Redemption Price" has the meaning specified in the Declaration.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer with direct responsibility for the administration of this Guarantee
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Enforcement Event" in respect of the Securities means an Indenture
Event of Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
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ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) The Guarantor shall provide the Guarantee Trustee (i) except while
the Preferred Securities are represented by one or more Global Securities at
least one Business Day prior to the date for payment of Distributions, a
list, in such form as the Guarantee Trustee may reasonably require, of the
names and addresses of the Holders of the Securities ("List of Holders") as
of the record date relating to the payment of such Distributions, and (ii) at
any other time, within 30 days of receipt by the Guarantor of a written
request from the Guarantee Trustee for a List of Holders as of a date no more
than 15 days before such List of Holders is given to the Guarantee Trustee;
provided that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Guarantee Trustee by the Guarantor. The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it,
provided that the Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3. REPORTS BY GUARANTEE TRUSTEE. Within 60 days after
__________________ of each year (commencing with the year of the first
anniversary of the issuance of the Securities), the Guarantee Trustee shall
provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act (if any) in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section 2.4. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and information as
required by Section 314(a) (if any) of the Trust Indenture Act and the
compliance certificate required by Section 314(a) of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314(a) of the Trust
Indenture Act.
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Section 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
Section 2.6. GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any such
Guarantee Event of Default shall cease to exist, and any Guarantee Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Guarantee, but no such waiver shall extend to any subsequent
or other default or Guarantee Event of Default or impair any right consequent
thereon.
Section 2.7. GUARANTEE EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
a Guarantee Event of Default, transmit by mail, first class postage prepaid,
to the Holders of the Securities, notices of all Guarantee Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice; provided, that the
Guarantee Trustee shall be protected in withholding such notice if and so
long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof or a Responsible Officer of the Guarantee Trustee
charged with the administration of the Declaration shall have obtained actual
knowledge thereof.
Section 2.8. CONFLICTING INTERESTS. The Declaration shall be deemed to
be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 2.9. DISCLOSURE OF INFORMATION. The disclosure of information as
to the names and addresses of the Holders of the Securities in accordance
with Section 312 of the Trust Indenture Act, regardless of the source from
which such information was derived, shall not be deemed to be a violation of
any existing law, or any law hereafter enacted which does not specifically
refer to Section 312 of the Trust Indenture Act, nor shall the Guarantee
Trustee be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
Section 2.10. GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM. Upon the
occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a)
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recover judgment, in its own name and as trustee of an express trust, against
the Guarantor for the whole amount of any Guarantee Payments remaining unpaid
and (b) file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders
of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.1. POWERS AND DUTIES OF GUARANTEE TRUSTEE
(a) This Guarantee shall be held by the Guarantee Trustee on behalf of
the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee
of its appointment to act as Successor Guarantee Trustee. The right, title
and interest of the Guarantee Trustee in and to this Guarantee shall
automatically vest in any Successor Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyance documents
have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders
of the Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee Event
of Default and after the curing of all Guarantee Events of Default that may
have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be
read into this Guarantee against the Guarantee Trustee. In case a Guarantee
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) and is actually known to a Responsible Officer of the Guarantee
Trustee, the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Guarantee Events of Default that may
have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee, and the Guarantee
Trustee shall
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not be liable except for the performance of such duties and obligations as
are specifically set forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against the Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee; but in the case of any such certificates
or opinions that by any provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee or if the
Guarantee Trustee shall have reasonable grounds for believing that an
indemnity, reasonably satisfactory to the Guarantee Trustee, against such
risk or liability is not reasonably assured to it under the terms of this
Guarantee.
Section 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be fully
protected in acting or refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee shall be sufficiently evidenced by an Officers' Certificate;
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(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration or any instrument (or any rerecording,
refiling or re-registration thereof);
(v) The Guarantee Trustee may consult with counsel, and the advice or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Guarantee from
any court of competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee at the request or
direction of any Holder, unless such Holder shall have provided to the Guarantee
Trustee such security and indemnity, reasonably satisfactory to the Guarantee
Trustee, against the costs, expenses (including attorneys' fees and expenses and
the expenses of the Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided, that nothing contained in this Section 3.2(a)(vi)
shall be taken to relieve the Guarantee Trustee, upon the occurrence of a
Guarantee Event of Default, of its obligation to exercise the rights and powers
vested in it by this Guarantee;
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(viii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its agents hereunder
shall bind the Holders, and the signature of the Guarantee Trustee or its agents
alone shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Guarantee Trustee
to so act or as to its compliance with any of the terms and provisions of this
Guarantee, both of which shall be conclusively evidenced by the Guarantee
Trustee's or its agent's taking such action; and
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(x) Whenever in the administration of this Guarantee the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (i) may request written instructions from the Holders of a
Majority in Liquidation Amount of the Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such written
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such written instructions.
(b) No provision of this Guarantee shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee
Trustee shall be construed to be a duty.
Section 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE. The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee.
ARTICLE IV.
GUARANTEE TRUSTEE
Section 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any state or territory thereof or of the
District of Columbia, or a corporation or other Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining authority referred to
above, then, for the purposes of this Section 4.1(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
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(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default shall
have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold such office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act
of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts owing for fees and reimbursement of expenses which
have accrued to the date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
Section 5.1. GUARANTEE. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim
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that the Trust may have or assert. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts
by the Guarantor to the Holders or by causing the Trust to pay such amounts
to the Holders. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to extend the
interest payment period on the Debentures and the Guarantor shall not be
obligated hereunder to make any Guarantee Payments during any Extended
Interest Payment Period (as defined in the certificate evidencing the
Debentures) with respect to the Distributions (as defined in the Declaration)
on the Securities.
Section 5.2. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of this Guarantee and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 5.3. OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee shall be absolute
and unconditional and shall remain in full force and effect until the entire
liquidation amount of all outstanding Securities shall have been paid and such
obligation shall in no way be affected or impaired by reason of the happening
from time to time of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Debentures
or any change to the maturity date of the Debentures permitted by the
Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of the
Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) Any invalidity of, or defect or deficiency in, the Securities;
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(f) The settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent
of this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Guarantee Trustee or the Holders to
give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or any
defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee.
Section 5.4. RIGHTS OF HOLDERS.
(a) The Holders of at least a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee in respect
of this Guarantee or to direct the exercise of any trust or power conferred
upon the Guarantee Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then any
Holder of Securities may, subject to the subordination provisions of Section
6.2, institute a legal proceeding directly against the Guarantor to enforce
the Guarantee Trustee's rights under this Guarantee without first instituting
a legal proceeding against the Trust, the Guarantee Trustee or any other
person or entity. In addition, if the Guarantor has failed to make a
Guarantee Payment, a Holder of Securities may, subject to the subordination
provisions of Section 6.2, directly institute a proceeding against the
Guarantor for enforcement of the Guarantee for such payment to the Holder of
the Securities of the principal of or interest on the Debentures on or after
the respective due dates specified in the Debentures, and the amount of the
payment will be based on the Holder's pro rata share of the amount due and
owing on all of the Securities. The Guarantor hereby waives any right or
remedy to require that any action on this Guarantee be brought first against
the Trust or any other person or entity before proceeding directly against
the Guarantor.
Section 5.5. GUARANTEE OF PAYMENT. This Guarantee creates a guarantee of
payment and not of collection.
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Section 5.6. SUBROGATION. The Guarantor shall be subrogated to all (if
any) rights of the Holders of Securities against the Trust in respect of any
amounts paid to such Holders by the Guarantor under this Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee, if
at the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Guarantee Trustee for the benefit
of the Holders.
Section 5.7. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Trust
with respect to the Securities, and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee notwithstanding the occurrence of any event referred
to in subsections 5.3(a) through 5.3(g), inclusive, hereof.
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. LIMITATION OF TRANSACTION. So long as any Securities remain
outstanding, if (a) there shall have occurred an event of default under the
Indenture with respect to the Debentures, (b) there shall be a Guarantee
Event of Default or (c) the Guarantor shall have given notice of its election
of an Extended Interest Payment Period as provided in the certificate
evidencing the Debentures and shall not have rescinded such notice, or such
Extended Interest Payment Period or any extension thereof shall be
continuing, then Guarantor shall not, and shall not permit any subsidiary of
the Guarantor, to (x) declare or pay any dividends or distributions on, or
redeem, purchase acquire or make a liquidation payment with respect to any of
the Guarantor's capital stock or (y) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities of
the Guarantor that rank on a parity with or junior in interest to the
Debentures or make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor if
such guarantee ranks on a parity with or junior in interest to the Debentures
(other than (i) dividends or distributions in common stock of the Guarantor,
(ii) payments under this Guarantee and (iii) any declaration of a dividend in
connection with the implementation of a shareholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, and (iv) purchases of common
stock related to the issuance of common stock or rights under any of the
Guarantor's benefit plans).
Section 6.2. RANKING. This Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (a) subordinate and junior in right of
payment to all other liabilities of the Guarantor, (b) on a parity with the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred securities of any Affiliate of the Guarantor and (c) senior to
the
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Guarantor's common stock. In addition, at all times such obligations will be
structurally subordinated to the liabilities and obligations of the
Guarantor's subsidiaries.
If a Trust Enforcement Event has occurred and is continuing under the
Declaration, the rights of the holders of the Common Securities to receive
Guarantee Payments hereunder shall be subordinated to the rights of the Holders
of the Preferred Securities to receive Guarantee Payments under this Guarantee.
ARTICLE VII.
TERMINATION
Section 7.1. TERMINATION. This Guarantee shall terminate upon (a) full
payment of the Redemption Price of all Securities, (b) distribution of the
Debentures to the Holders of all the Securities or (c) full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Trust. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any
Holder of Securities must restore payment of any sums paid under the
Securities or under this Guarantee.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason
of such Indemnified Person's negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
Section 8.2. INDEMNIFICATION. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against any
loss, liability
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or expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against, or investigating, any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in
this Section 8.2 shall survive the termination of this Guarantee.
ARTICLE IX.
MISCELLANEOUS
Section 9.1. SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit
of the Holders of the Securities then outstanding.
Section 9.2. AMENDMENTS. Except with respect to any changes that do not
materially adversely affect the rights of the Holders (in which case no consent
of the Holders will be required), this Guarantee may not be amended without the
prior approval of the Holders of not less than 66-2/3% of the aggregate
liquidation amount of the Securities. The provisions of Section 11.2 of the
Declaration with respect to meetings of, and action by written consent of, the
Holders of the Securities apply to the giving of such approval.
Section 9.3. NOTICES. All notices provided for in this Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered
by hand, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below (or such other address as the Guarantee Trustee may give
notice of to the Guarantor and the Holders of the Securities):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telecopy no.: (000) 000-0000
(b) If given to the Guarantor, at the Guarantor's mailing addresses set
forth below (or such other address as the Guarantor may give notice of to the
Guarantee Trustee and the Holders of the Securities):
OGE Energy Corp.
000 Xxxxx Xxxxxx
X.X. Xxx 000
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Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
Telecopy no.: (000) 000-0000
(c) If given to any Holder of Securities, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
Section 9.4. BENEFIT. This Guarantee is solely for the benefit of the
Holders of the Securities and, subject to Section 3.1(a), is not separately
transferable from the Securities.
Section 9.5. GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF OKLAHOMA WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, this Guarantee is executed as of the day and year first
above written.
OGE ENERGY CORP., WILMINGTON TRUST COMPANY,
as Guarantor as Guarantee Trustee
By: By:
------------------------------- -------------------------------
Name: Name:
Title: Title:
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